On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-04-00254.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2010
Before Judges Wefing, Payne and Koblitz.
Defendant Edward J. Roman, Sr. appeals from an order entered on August 13, 2008, denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse and remand in part.
A jury found defendant guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of murder, of his seven-week-old son, Edward Jr. Defendant is serving a twenty-seven-year prison term with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed his conviction and sentence, and we affirmed. State v. Roman, 382 N.J. Super. 44 (App. Div. 2005). The Supreme Court thereafter granted certification, 188 N.J. 219 (2006), which was ultimately dismissed, 189 N.J. 420 (2007). Defendant filed a timely PCR petition. Defendant now appeals from the trial court's order denying his petition without an evidentiary hearing.
On September 23, 2001, defendant was baby-sitting his newborn twin boys when his son Edward Jr. died. As we stated on direct appeal,
An autopsy revealed, however, that Edward Jr. died from multiple skull fractures, hemorrhaging, front subdural bleeding and a swelling of the brain that was allegedly caused by blunt force to two different parts of his head. The autopsy also revealed twenty-seven fractures of the newborn's ribs in various stages of healing. An examination of the other twin disclosed seventeen rib fractures also in different stages of healing. [Roman, supra, 382 N.J. Super. at 51.]
Defendant eventually gave a detailed confession to the police relating that, with the screaming baby's head between his knees, he slammed his baby on both sides of the head knocking him unconscious. At trial he recanted that confession and testified that his son had accidentally hit against his knees and lost consciousness while defendant was trying to feed him formula.
The jury acquitted defendant of aggravated assault and endangering the welfare of both twins for the period preceding the fatal incident.
In this appeal, defendant argues that:
I. THE PCR COURT ERRED IN DENYING MR. ROMAN'S PCR AS HE WAS DEPRIVED [OF] EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to call Mr. Roman's forensic pathologist expert, Dr. Shane, as a defense witness.
B. Trial counsel failed to impeach the State's medical examiner during cross-examination with evidence of the botched Ellen Andros autopsy.
C. Trial counsel failed to object to Dr. Boal's inadmissible testimony concerning her opinion that E.R. suffered a brain injury based upon her review of a CT scan; failed to move for a mistrial due to the ...